AN ACT Relating to underground storage tanks; adding a new chapter to Title 90 RCW; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. It is the intent of this chapter that the department of ecology shall establish a program which implements the requirements for the underground storage of regulated substances promulgated under subtitle I of the federal resource conservation and recovery act. This program must be designed and maintained to be at least as stringent as current and future federal rules promulgated by the United States environmental protection agency. It is understood, therefore, that this chapter and the rules promulgated under this chapter, may need to be amended to conform to future federal legislative amendments and regulatory promulgations. It is the further intent of this chapter that this chapter and the rules promulgated hereunder shall supersede and preempt all local laws, ordinances, and regulations pertaining to the underground storage of regulated substances.

NEW SECTION. Sec. 2. The definitions in this section apply throughout this chapter.

(1) "Closure" means the permanent removal of regulated substances from an underground storage tank in accordance with a department-approved plan which protects human health and the environment and minimizes or eliminates the need for further maintenance and ensures that the removal, disposal, neutralization, or reuse of the regulated materials that were stored in the tank is accomplished in an appropriate manner.

(2) "Department" means the department of ecology.

(3) "Director" means the director of the department.

(4) "Federal act" means the federal resource conservation and recovery act, as amended (42 U.S.C. Sec. 6901, et seq.).

(5) "Guarantor" means any person, other than the owner or operator, who provides evidence of financial responsibility for an owner or operator under section 11 of this act.

(6) "Operator" means any person in control of, or having responsibility for, the daily operation of an underground storage tank.

(7) "Owner" means (a) in the case of an underground storage tank in use on November 8, 1984, or brought into use after that date, any person who owns an underground storage tank used for the storage, use, or dispensing of regulated substances, and (b) in the case of any underground storage tank in use before November 8, 1984, but no longer in use on that date, any person who owned such tank immediately before the discontinuation of its use.

(8) "Person" means any individual, trust, joint stock company, corporation (including a government corporation), partnership, association, consortium, joint venture, commercial entity, state, municipality, commission, political subdivision of a state, interstate body, the federal government, or any department or agency of the federal government.

(9) (a) "Pesticide" means (i) a substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest, and (ii) a substance or mixture of substances intended for use as a plant regulator, defoliant, or desiccant. (b) However, the term "pesticide" shall not include any substance (i) that is a new animal drug within the meaning of section 201(w) of the federal food, drug, and cosmetic act (21 U.S.C. Sec. 321 (w)), or (ii) that has been determined by the secretary of health and human services not to be a new animal drug by a regulation establishing conditions of use for the substance, or (iii) that is an animal feed within the meaning of section 201(x) of such act (21 U.S.C. Sec. 321(x)) bearing or containing an article covered by (a) of this subsection.

(10) "Regulated substance" means all of the following liquid or solid substances:

(a) Any substance defined in section 101(14) of the federal comprehensive environmental response, compensation and liability act of 1980 (42 U.S.C. Sec. 9601(14)) (but not including any substance regulated as a hazardous waste under subtitle C of the federal act);

(b) Petroleum, including crude oil or any fraction thereof which is liquid at standard conditions of temperature and pressure (sixty degrees Fahrenheit and 14.7 pounds per square inch absolute); and

(c) Any substance or material which is classified by the national fire protection association as a flammable liquid, a class II combustible liquid, or a class III-A combustible liquid.

(11) "Release" means any spilling, leaking, emitting, discharging, escaping, leaching, or disposing from an underground storage tank into the ground water, surface water or subsurface soils. "Release" does not include any of the following:

(a) Any release which results in exposure to persons solely within a workplace, with respect to a claim such exposed persons may assert against their employer;

(b) Release of source, by-product, or special nuclear material from a nuclear incident, as those terms are defined in the federal atomic energy act of 1954 (42 U.S.C. Sec. 2011, et seq.), if such release is subject to requirements with respect to financial protection established by the nuclear regulatory commission under section 2210 of Title 42 of the United States Code or, for the purposes of section 104 of the federal comprehensive environmental response, compensation, and liability act (42 U.S.C. Sec. 9604) or any other response action, any release of source by-product, or special nuclear material from any processing site designated under section 7912(a)(1) or 7942(a) of Title 42 of the United States Code, which sections are a part of the federal uranium mill tailings radiation control act of 1978; or

(12) "Storage" or "store" means the containment of regulated substances, either on a temporary basis or for a period of years. "Storage" or "store" does not include the use of regulated materials in an industrial process where regulated materials are present in quantities and for a period of time reasonably necessary for that process.

(13) "Tank" means a stationary device designed to contain an accumulation of regulated substances which is constructed primarily of nonearthen materials (e.g., wood, concrete, steel, plastic) which provide structural support.

(14) "Unauthorized release" means any release of any regulated substance which does not conform to the provisions of this chapter, unless the release was authorized by the department or the federal government.

(15) "Underground storage tank" means any one of a combination of tanks (including underground pipes connected thereto) which is used to contain an accumulation of regulated substances, and the volume of which (including the volume of the underground pipes connected thereto) is ten percent or more beneath the surface of the ground. "Underground storage tank" does not include any of the following:

(a) A farm or residential tank of 1,100 gallons or less capacity used for storing motor fuel for noncommercial purposes;

(b) A tank used for storing heating oil for consumptive use on the premises where stored;

(d) A pipeline facility (including gathering lines) (i) regulated under the federal natural gas pipeline safety act of 1968 (49 U.S.C.App. 1671, et seq.) or the federal hazardous liquid pipeline safety act of 1979 (40 U.S.C. App.2001, et seq.), or (ii) which is an intrastate pipeline facility regulated under state laws comparable to the provisions of law referred to in (d)(i) of this subsection;

(e) A surface impoundment, pit, pond, or lagoon;

(f) A storm water or wastewater collection system;

(g) A flow-through process tank;

(h) A liquid trap or associated gathering lines directly related to oil or gas production and gathering operations; or

(i) A storage tank situated in an underground area (such as a basement, cellar, mineworking, drift, shaft, or tunnel) if the storage tank is situated upon or above the surface of the floor.

The term "underground storage tank" does not include any pipes connected to any tank which is described in (a) through (i) of this subsection.

NEW SECTION. Sec. 3. (1) Each owner of an underground storage tank in use on the effective date of this section, or that has been taken out of operation after January 1, 1974, shall notify the department of the existence of such tank within thirty days unless the owner has reason to believe the department has already received a notification on such tank pursuant to section 9002 of the federal act. Notification is not required if a tank otherwise subject to this subsection has been removed from the ground.

(2) Any owner who brings an underground storage tank into use after the effective date of this section must notify the department within thirty days after installing the tank.

(3) Notification shall include at least the following information:

(a) The name and address of the person who owns the underground storage tank or tanks;

(b) The name and address of the facility at which the underground storage tank or tanks are located;

(c) If known, a description of each underground storage tank, including year of manufacture, type of construction, container capacity (gallons), and operational status;

(d) A list of regulated substances currently stored in each underground storage tank;

(e) Where applicable, the date a tank was taken out of operation, the estimated quantity of substance remaining in the tank, and a description of any closure procedures undertaken; and

(f) The name and/or title of a contact person in the event of an emergency involving the tank, and a phone number at which that person can be reached.

(4) Notification shall be accompanied by a fee for each tank. Fees shall be established by the department at the level sufficient to pay the necessary and reasonable costs incurred in administering this chapter.

(5) Notification is not required for a tank if the tank was reported under section 103(c) of the federal comprehensive environmental response, compensation, and liability act of 1980.

(6) The department shall make two separate inventories of all underground storage tanks containing regulated substances. One inventory shall be made with respect to petroleum and one with respect to other regulated substances. The department shall aggregate the data on the notification forms submitted pursuant to subsections (1) and (2) of this section. The department shall submit such aggregated data to the United States environmental protection agency no later than July 7, 1988.

NEW SECTION. Sec. 4. (1) Within one hundred eighty days after the effective date of this section and after notice and an opportunity for public comment, the director shall prescribe a form for permit applications and the information to be included on the application.

(2) Effective sixty days after the director has prescribed the form described in subsection (1) of this section:

(a) No person may own an underground storage tank unless that person applies for a permit from the department within thirty days after putting the tank into service;

(b) No person may operate an underground storage tank for greater than thirty days unless the owner or operator has applied for a permit from the department; and

(c) No person may operate an underground storage tank if the department has denied the owner or operator a permit for that tank.

(3) Permits issued prior to the issuance of final rules under section 5 of this act shall be designated interim permits. Interim permits shall expire no later than one year after the department approves a final permit for the tank.

(4) Permits issued after the issuance of final rules under section 5 of this act shall be designated final permits for all underground storage tanks unless the director determines that release detection rules should be implemented according to a schedule which addresses higher risk underground storage tanks first. Within six months after issuance of such rules, or in compliance with the director's schedule, owners of underground storage tanks subject to interim permits shall apply for a final permit for all such tanks. The department shall approve, modify, and approve or disapprove applications for a final permit within six months after receiving a completed application for the tank. Owners shall comply with additional permit conditions contained in the final permit within one year after issuance of the permit.

(5) The department may establish a permit fee at a level sufficient to pay the necessary and reasonable costs incurred in administering this chapter.

NEW SECTION. Sec. 5. (1) An owner or operator of an underground storage tank must maintain a leak detection system, an inventory control system together with tank testing, or a comparable system or method designed to identify unauthorized releases in a manner consistent with the protection of human health and the environment. Within twelve months after the effective date of this section and after an opportunity for notice and comment, the director shall issue rules describing those systems or methods which conform to the requirements of this section.

(2) The director shall consider developing rules that mandate different release detection requirements depending on, but not limited to, the following:

(a) Toxicity, corrosivity, ignitability, or reactivity of the stored substance;

(b) Solubility of the stored substance;

(d) Type of soil around the tank;

(e) Depth, quality, and usage of ground water;

(f) Proximity of ground water usage to the site; and

(g) Geology and hydrogeology of the site and surrounding area.

(3) The director shall consider implementing release detection rules according to a schedule designed to address first those underground storage tanks judged to present the greatest risk to human health and the environment.

NEW SECTION. Sec. 6. An owner or operator of an underground storage tank must maintain records of the release detection system established pursuant to section 5 of this act. Records must be kept for three years and shall include sufficient information to permit the department to verify that the owner or operator is properly maintaining the system established pursuant to section 5 of this act.

NEW SECTION. Sec. 7. An owner or operator of an underground storage tank must report all unauthorized releases and corrective action taken in response to unauthorized releases from an underground storage tank as follows:

(1) The department must be notified of the release within twenty-four hours after the release has been detected using the required release detection system. If the release detection system used is inventory reconciliation, the report shall be made within twenty-four hours after the release has been confirmed.

(2) Within fourteen days of detecting the release or initiating corrective action, a written report must be submitted if requested by the department, including, to the extent known at the time of the report:

(a) The type, quality, and concentration of substance released;

(b) The method of cleanup;

(d) The method and location of disposal of released substance; and

(e) Information about the extent of contamination, if any, due to the release.

NEW SECTION. Sec. 8. An owner or operator of an underground storage tank shall take corrective action in response to an unauthorized release as provided in this section.

(1) If a release is found, the tank must be emptied within three working days, or more quickly if a significant threat to human health and the environment exists, unless emptying the tank poses a greater danger to the environment.

(a) If the owner or operator chooses to make repairs, the tank must be tested by a method approved by the department before reuse.

(b) If the owner or operator chooses not to repair the tank, closure or removal of the tank must be completed within one hundred twenty days in accordance with the provision of section 9 of this act.

(2) An owner or operator shall implement cleanup requirements established by the department in response to an unauthorized release. The department shall, in determining cleanup requirements for a release, consider site-specific criteria, including, but not limited to, the following:

(a) Toxicity, corrosivity, ignitiability, or reactivity of the stored substance;

(b) Solubility of the stored substance;

(d) Type of soil around the tank;

(e) Depth, quality, and usage of ground water;

(f) Proximity of ground water usage to the site; and

(g) Geology and hydrogeology of the site and surrounding area.

NEW SECTION. Sec. 9. Closure of an underground storage tank shall be accomplished by the owner or operator in such a manner as to prevent future unauthorized releases of regulated substances.

(1) No owner or operator may abandon an underground storage tank or close or temporarily cease operating an underground storage tank, except as provided in this section.

(2) An underground storage tank that is temporarily taken out of service, but which the operator intends to return to use, shall continue to be subject to all the permit, inspection, and release detection requirements of this chapter unless the operator complies with subsection (3) of this section for the period of time the underground tank is not in use. (3) No owner or operator may permanently close an underground tank unless the person undertakes all of the following actions:

(a) Removes the regulated substances which were stored in the tank prior to closure; and

(b) (i) Adequately seals the tank to minimize the threat to the public safety and the possibility of water intrusion into, or runoff from, the tank; or

(ii) Removes the tank from the ground.

NEW SECTION. Sec. 10. (1) No underground storage tank may be installed after the effective date of this section unless:

(a) The tank will prevent releases due to corrosion to structural failure for the operational life of the tank;

(b) The tank is cathodically protected against corrosion, constructed of noncorrosive material, steel clad with a noncorrosive material, or designed in a manner to prevent the release or threatened release of any stored substance; and

(2) No underground storage tank installed after the effective date of this section may be used to store regulated substances unless the tank, and associated piping designed to contain the regulated substance stored in the underground storage tank, has first been tested to verify that no leaks developed during installation of the tank. All new underground storage tanks shall be installed utilizing practices and materials in strict conformance with, or exceeding, the manufacture's specifications.

(3) Notwithstanding subsection (1) of this section, if soil tests conducted in accordance with ASTM standard G57-58, or another standard approved by the director, show that soil resistivity in an installation location is twelve thousand ohm-cm or more (unless a more stringent standard is prescribed by the director by rule), a storage tank without corrosion protection may be installed in that location until such time as the department issues rules under this section.

NEW SECTION. Sec. 11. (1) An owner of an undergound storage tank must demonstrate financial responsibility for corrective action and compensation of third parties for bodily injury and property damage caused by sudden and nonsudden accidental releases arising from operating an underground storage tank.

(2) The financial responsibility required by this section may be demonstrated by any one, or a combination of the following: Insurance, guarantee, surety bond, letter of credit, qualifications as a self-insurer, or other considerations.

(a) An owner is qualified as a self-insurer if the owner satisfies one of the two following criteria:

(i) The owner must have tangible net worth equal to or greater than an amount to be specified in rules and assets in the United States amounting to either: (A) At least ninety percent of the owner's total assets; or (B) at least five times the amount of liability coverage to be demonstrated by this test.

(ii) The owner must have a current rating for the owner's most recent bond issuance of AAA, AA, A, or BBB as issued by Standard and Poor's or Aaa, Aa, A, or Baa as issued by Moody's and tangible net worth equal to or greater than an amount to be specified by rule, and assets in the United States amounting to either: (A) At least ninety percent of the owner's total assets; or (B) at least five times the amount of liability coverage to be demonstrated by this test.

(3) If the owner is in bankruptcy, reorganization, or arrangement pursuant to the federal bankruptcy code or where jurisdiction cannot be obtained with reasonable diligence over an owner likely to be solvent at the time of judgment, any claim arising from conduct for which evidence of financial responsibility must be provided under this section may be asserted directly against the guarantor providing evidence of financial responsibility. In the case of an action pursuant to this subsection, the guarantor may invoke all rights and defenses which would have been available to the owner if any action had been brought against the owner by the claimant and which would have been available to the guarantor if an action had been brought against the guarantor by the owner.

(4) The total liability of any guarantor is limited to the aggregate amount which the guarantor has provided as evidence of financial responsibility to the owner under this section. This section does not limit any other state or federal statutory, contractual, or common law liability of a guarantor, including but not limited to bad faith in negotiating or failing to negotiate the settlement of any claim. This section shall not be construed to diminish the liability of any person under section 107 or 111 of the federal comprehensive environmental response, compensation, and liability act of 1980 or other applicable laws.

(5) (a) The department, in promulgating financial responsibility rules under this section, may establish an amount of coverage for particular classes or categories of underground storage tanks containing petroleum which shall satisfy such rules and which shall not be less than one million dollars for each occurrence with an appropriate aggregate requirement.

(b) The department may set amounts lower than the amounts required by (a) of this subsection for underground storage tanks containing petroleum which are at facilities not engaged in petroleum production, refining, or marketing and which are not used to handle substantial quantities of petroleum.

(c) In establishing classes and categories for purposes of this subsection, the department may consider the following factors:

(i) The size, type, location, storage and handling capacity of underground storage tanks in the class or category and the volume of petroleum handled by such tanks;

(ii) The likelihood of release and the potential extent of damage from any release from underground storage tanks in the class or category;

(iii) The economic impact of the limits on the owners and operators of each such class or category, particularly relating to the small business segment of the petroleum marketing industry;

(iv) The availability of methods of financial responsibility in amounts greater than the amount established by this subsection; and

(v) Such other factors as the department deems pertinent.

(6) If an owner can demonstrate to the department that the levels of financial responsibility required by this section are not consistent with the degree and duration of risk associated with storage in the underground tank or tanks, the owner may request a variance. If granted, the variance will result in an adjusted level of required liability coverage, based on the department's assessment of the degree and duration of risk associated with the ownership of the tank or tanks. The department may require an owner who requests a variance to provide technical and engineering information for the purpose of determining the appropriate level of financial responsibility.

NEW SECTION. Sec. 12. (1) For the purpose of developing rules and enforcing this chapter, any owner or operator of an underground storage tank shall, upon request of any officer, employee, or representative of the department, designated by the director, furnish information relating to such tanks, their associated equipment, and their contents, allow monitoring or testing, and permit such officer at all reasonable times to have access to and copy all records relating to the tanks. For the purposes of developing or assisting in the development of any rule or enforcing this chapter, such officers, employees, or representatives are authorized:

(a) To enter at reasonable times any establishment or other place where an underground storage tank is located;

(b) To inspect and obtain samples from any person of any regulated substance contained in such tank; and

(c) To conduct or require the owner or operator to conduct monitoring or testing of the underground tank, associated equipment, or immediately surrounding soils, air, surface water, or ground water.

(2) Each inspection shall be commenced and completed with reasonable promptness. If the officer, employee, or representative obtains any samples prior to leaving the premises, he or she shall give to the owner or operator a receipt describing the sample obtained and, if requested, a portion of each such sample equal in volume or weight to the portion retained. If any analysis is made of the samples, a copy of the results of the analysis shall be furnished promptly to the owner or operator.

(3) Any records, reports, or information obtained from any person pursuant to this chapter shall be available to the public, except upon a showing satisfactory to the director by any person that records, reports, or information, or a particular part thereof, to which the director or any officer, employee, or representative thereof has access pursuant to this chapter if made public, would divulge information entitled to protection under 18 U.S.C. Sec. 1905, such information or particular portion thereof shall be considered confidential in accordance with the purposes of that section except that such record, report, document, or information may be disclosed to other offices, employees, or authorized representatives of the state or the United States responsible for carrying out this chapter, or the federal act, or when relevant to any proceedings under this chapter or the federal act.

(4) In submitting information pursuant to this chapter, a person required to provide such information may:

(a) Designate the information which such person believes is entitled to protection under this section; and

(b) Submit such designated information separately from other data submitted under this section. A designation under this subsection shall be made in writing and in such manner as the director may prescribe.

NEW SECTION. Sec. 13. (1) If the director has reason to believe that a violation of this chapter, or any rule of the department, has occurred, the director shall attempt to remedy the same by conference, conciliation, or persuasion. In case of failure of such conference, conciliation, or persuasion to correct or remedy a violation, the director may issue an order directed to the violator or violators or the director may make application to the superior court of the county in which the violative act or practice has been or is about to be engaged in for an order enjoining the act or practice, or for an order requiring compliance with this chapter, the rules, or the order.

(2) All hearings on and review of contested matters, orders, and any other enforcement actions under this chapter shall be provided and conducted in accordance with the administrative procedure act, chapter 34.04 RCW.

NEW SECTION. Sec. 14. (1) An owner who knowingly submits false information or fails to notify the department pursuant to section 3 of this act, or rules promulgated thereunder, shall be subject to a civil penalty not to exceed ten thousand dollars for each tank for which notification is not given or false information is submitted.

(2) Any owner or operator of an underground storage tank who fails to comply with any of the requirements of this chapter, other than section 3 of this act, or rules promulgated thereunder shall be subject to a civil penalty not to exceed ten thousand dollars for each tank for each day of violation.

(3) If a violator fails to comply with an order under section 13 of this act within the time specified in the order, the violator shall be liable for a civil penalty of not more than twenty-five thousand dollars for each day of continued noncompliance.

(4) A person not subject to 18 U.S.C. Sec. 1905 who knowingly and wilfully divulges or discloses any information entitled to protection under section 10 of this act shall, upon conviction, be subject to a fine of not more than five thousand dollars or imprisonment not to exceed one year, or both.

(5) In determining the civil penalty imposed pursuant to subsection (1) or (2) of this section, the court shall consider all relevant circumstances including, but not limited to, the extent of harm or potential harm caused by the violation, the nature and duration of the violation, the number of past violations, and any corrective action taken by the owner.

(6) No penalty may be imposed under this section if the owner or operator has already been penalized for the same violation under the federal act.

NEW SECTION. Sec. 15. The department may adopt such regulations as are necessary to meet the requirements for the state to obtain authority to administer its own underground storage tank program under 42 U.S.C. Sec. 6901, et seq. and the regulations thereunder. The department is further authorized to adopt rules necessary to administer this chapter.

NEW SECTION. Sec. 16. Sections 1 through 15 of this act shall constitute a new chapter in Title 90 RCW.